BOARD DATE:	  10 March 2011

		DOCKET NUMBER:  AR20100024676 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his general under honorable conditions discharge to a fully honorable discharge.

2.  The applicant states that after serving more than 15 years and receiving many honorable discharges, he now knows that it was the effect of post-traumatic stress disorder (PTSD) that destroyed his life in the last years of his military service.  After receiving treatment he thinks it is only fair that his discharge should be upgraded.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army for a period 3 years on 14 March 1969.  Records show the applicant was 21 years of age at the time of his enlistment.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant's records show he reenlisted for a period of 6 years on 6 February 1981 and held military occupational specialty 19D (Cavalry Scout).  He was promoted through the ranks to staff sergeant/E-6.

4.  On 24 July 1985, the applicant was convicted by a general court-martial of one specification of indecent liberties with a child under 16 years of age with intent to gratify his sexual desires.  He was sentenced to confinement for 90 days.

5.  A DA Form 3822-R (Report of Mental Evaluation), dated 26 September 1981, shows the applicant suffered from no mental illness.  The applicant declined a medical examination as part of the separation process.  His record is void of any evidence and he has not provided any evidence of any specific medical condition.

6.  On 1 October 1985, his commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for misconduct – commission of a serious offense.  He recommended an under other than honorable conditions discharge.

7.  On 7 October 1985, the applicant acknowledged receipt of the commander's intent to separate him.  He was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He requested consideration of his case by a separation board and a personal appearance before a separation board, but he declined submitting a statement on his own behalf.

8.  He further indicated he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him and that he could be ineligible for many or all 

benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

9.  On 9 December 1985, an administrative separation board convened at Aurora, CO, to determine whether to administratively separate the applicant from the Army for misconduct.  The board found the applicant undesirable for further retention in the Army and deemed his rehabilitation not possible.  In view of the findings, the board further recommended his discharge with a general under honorable conditions discharge.

10.  On 30 December 1985, the convening/separation authority approved the administrative separation board's findings and recommendations and ordered the applicant discharged from the Army under the provisions of paragraph 14-12(c) of Army Regulation 635-200 for misconduct – commission of a serious offense – with an under honorable conditions character of service.  Accordingly, the applicant was discharged on 8 January 1986.

11.  The DD Form 214 he was issued at the time of discharge shows he was discharged in accordance with paragraph 14-12(c) of Army Regulation 635-200 by reason of misconduct – commission of a serious offense with a character of service as under honorable conditions.  He completed a total of 14 years, 8 months, and 22 days of creditable active military service.

12.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record.  Only a general court-martial convening authority could approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

14.  Army Regulation 625-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits 

provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his general under honorable conditions discharge should be upgraded to an honorable discharge due to the fact he was suffering from PTSD was carefully considered and determined to be without merit.

2.  The evidence of record shows the applicant committed a serious offense by committing an act of indecent liberties with a child under 16 years of age with intent to gratify his sexual desires.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's record is void of any evidence and he has not provided any evidence that PTSD or any other medical condition affected his ability to serve or resulted in the misconduct that led to his discharge.

4.  The applicant's discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his record of indiscipline, the applicant's service clearly does not merit an upgrade of his discharge to honorable.  Therefore, he is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x__  ____x___  ___x___  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________x_______________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20100024676



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ABCMR Record of Proceedings (cont)                                         AR20100024676



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